frequently asked questions

frequently asked questions

FAQ

The Assisted Decision-Making (Capacity) Act was signed into law in December 2015. The Act recognises that, as far as possible, all adults have the right to play an active role in decisions that affect them. These decisions can be about their personal welfare and property and affairs.

The 2015 Act brings about important changes for people who require support to make decisions and for anyone interacting with them. The 2015 Act:

  • Introduced new guiding principles about interacting with a person who has difficulties with their decision-making capacity.
  • Established a tiered system of decision support arrangements for people who need help with making decisions
  • Abolished the current wardship system and requires all wards of court to be discharged from wardship within three years of 26 April 2023.
  • Established the Decision Support Service

You can find out more about the 2015 Act on our Legislation page.

 

  1. The Decision Support Service is a new service for all adults who have difficulties with their decision-making capacity.

The Decision Support Service is a public body established within the Mental Health Commission by the Assisted Decision-Making (Capacity) Act 2015. Our job is to register the new decision support arrangements and supervise the individuals who are providing a range of supports to people with capacity difficulties.

Any adult who needs support to exercise their decision-making capacity could need the Decision Support Service. This may include but is not limited to people with an intellectual disability, mental illness, dementia or acquired brain injury, as well as people with age-related conditions. People may require the Decision Support Service when a third party such as a bank, lawyer, or hospital questions a person’s capacity to make a decision or give consent.

Any person who wants to plan ahead for a time in the future when they may lose capacity could also need the Decision Support Service.

No, the Decision Support Service will not make decisions for you. If you need help with certain decisions, you may appoint a 'decision supporter' to help you. The type of help your decision supporter can provide will depend on the decision support arrangement that is in place.

In some cases, the court may ask us to provide a decision-making representative from our panel of trained experts to act as your decision supporter. A decision-making representative can only be assigned to you by a court order.

The DSS has adopted a ‘digital first’ approach in line with government policy, based on advice and having regard to the experience of Public Guardians in other jurisdictions.

International experience has shown that paper-based registration processes tend to be inefficient, error prone, vulnerable to data breach and fundamentally unsustainable.

The DSS has spoken publicly of its establishment on a digital platform for several years.

Recent research by Safeguarding Ireland has shown that only 6% of adults have an EPA. It will be important to promote uptake among greater numbers and younger adults and our systems and the DSS business model must be equipped to manage increased volumes efficiently.

Call for more people to make an Enduring Power of Attorney - Safeguarding Ireland 

 

If a donor is not able to complete the relevant steps on the online portal, even with support, which may of course include professional support throughout, they may be reassured that the DSS will facilitate an alternative 5-step process. 

This commences with an initial engagement to verify the identity of the donor and their attorney(s) to substitute the ID authentication supplied by the online system.

The nature of an alternative non-digital process necessarily involves longer timeframes and additional steps to ensure we meet our continued commitment to data protection and reduce the risk of error. The data provided throughout the paper process has to be input by the DSS into the portal at every stage to replicate what can be done in real time by engaging directly with the system.

When the 2015 Act refers to a ‘relevant person’, it means a person whose capacity to make one or more decisions is, or may shortly be, in question. Under the new law, a person’s capacity must be assessed based on their ability to make a specific decision at a specific time.

Section 8 of the Assisted Decision-Making (Capacity) Act 2015 sets out nine guiding principles. You can read more about the guiding principles on our Legislation page.

There are five different decision support arrangements available. These arrangements are based on the different levels of support that a person requires to make a specific decision at a specific time.

There are three tiers of decision support available for people who currently, or may shortly, face challenges when making certain decisions. These are:

  • Decision-making assistance agreement (the person makes their own decision with support from their decision-making assistant. Their decision-making assistant helps them to access and to understand information and to communicate their decision)
  • Co-decision- making agreement (the person makes specified decisions jointly with a co-decision-maker)
  • Decision-making representation order (the court appoints a decision-making representative to make certain decisions on the person’s behalf).

There are two types of decision support arrangement for people who wish to plan for a time in the future when they might lose capacity. This includes:

  • advance healthcare directive
  • enduring power of attorney.

You can find out more on our Decision Support Arrangements page.

This is not a term in the 2015 Act. The Decision Support Service uses the term ‘decision-supporter’ to refer to a person who has been appointed as a:

  • decision-making assistant under a decision-making assistance agreement
  • co-decision-maker under a co-decision-making agreement
  • decision-making representative under a decision-making representation order
  • attorney under an enduring power of attorney
  • designated healthcare representative under an advance healthcare directive.

The type of support they can provide depends on the decision support arrangement in place.

Ideally, a decision supporter will be a family member or trusted friend.

At the upper tier of support, the person may not have someone who is available and suitable to act as a decision-making representative. The Decision Support Service will recruit and maintain a panel of people who are suitable to act as decision-making representatives. The court can ask us to nominate two decision-making representatives from this panel and the court can choose to appoint one of them.

You can find out more about decision supporters our Decision Supporters page.

A decision-making representative’s role is to make certain decisions on behalf of a person if they are unable to make those decisions for themselves. They will be appointed by the court in an order called a decision-making representation order.

The court order will list all the decisions that the decision-making representative can make. This may include decisions about the person’s personal welfare and property and affairs. A decision-making representative can only make decisions that are included in the order.

You can find out more about the role and responsibilities of a decision-making representative on our Decision-Making Representatives page.

The court may decide to appoint more than one decision-making representative to make decisions on behalf of a person. If the court appoints more than one decision-making representative in a decision-making representation order, it will say whether they:

  • must make the decisions in the order together
  • can make the decisions together or separately
  • must make some decisions together but can make other decisions together or separately.

This is the middle tier of support.To be a co-decision-maker, you must be 18 years and over. You must be known and trusted by the person appointing you.

There are some circumstances where you cannot be a co-decision-maker. You can find out more about who can be a co-decision-maker our Co-Decision-Makers page.

You can only appoint one co-decision-maker in a co-decision-making agreement. However, if you wish to have different co-decision-makers for different types of decisions, you can appoint them under separate co-decision-making agreements.

 

If you wish to plan ahead, you can make an advance healthcare directive. This lets you set out your wishes regarding treatment decisions in case you are unable to make these decisions in the future. Importantly, it lets you write down any treatment you do not want.

Under the new law, you will be able to appoint someone you know and trust as your designated healthcare representative to ensure your advance healthcare directive is followed.

You can find out more on our Advance Healthcare Directives page.

You can end your advance healthcare directive at any time if you have capacity to do so. You can also change your advance healthcare directive. Your advance healthcare directive only starts to apply if you lose capacity. It can be a good idea to review and update your advance healthcare directive on a regular basis to ensure that it reflects your wishes.

You should also review and update it following any major medical treatment or diagnoses to ensure it reflects your medical situation and your will and preferences.

If you have a safeguarding concern about an adult who may be at risk, please contact the Health Service Executive (HSE). The HSE have dedicated Safeguarding and Protection Teams that deal with safety concerns. A list of HSE contact details can be found on our Useful Links page.

In the case of an emergency, please contact the Gardaí or emergency services by calling 121 or 999.

If we receive a complaint or allegation of abuse as part of our supervisory and complaints functions, we will escalate this appropriately.

It will also be important that organisations that become aware of a complaint of abuse involving a decision supporter contact us so that we can take appropriate action.

Any person who has a safeguarding concern about an adult at risk should contact the HSE Adult Safeguarding Team in their area. In the case of an emergency, please contact the Gardaí or emergency services by calling 121 or 999.

We have the authority to investigate complaints about decision-making arrangements and decision supporters. You will find our complaints form on the forms section of the website. You can email or post this form to us.

You can also contact the complaints team on 01 211 9750 or email complaints@decisionsupportservice.ie.

If there is a medical emergency, and you do not have a decision supporter or an advance statement (for example an advance healthcare directive or an enduring power of attorney), a healthcare professional may need to provide you with necessary treatment without your consent. If you do have a decision supporter or an advance statement and the healthcare professional has access to it, they will have to consult your supporter or statement, unless the delay in doing so might cause you serious harm.

It is important that, if you decide to make an advance healthcare directive or an enduring power of attorney, which includes your wishes about healthcare and treatment, that you let important people know, like your family, your friends and your general practitioner. In this way, you can help to make sure your medical wishes are respected even in an emergency.

Yes, you can register a decision support arrangement with us via our MyDSS portal. You can access our portal through the portal link on the Decision Support Service website in the top right-hand corner of the screen. You can find out more on our Useful Links page.

You will be able to search the register if you can show that you have a good reason to. This is referred to as having a ‘legitimate interest’. Approved persons and organisations, like banks, lawyers and healthcare professionals can be will also be able to search the register. This access is controlled by the Assisted Decision-Making (Capacity) Act 2015 (Inspection of Register and Receipt of Copies of Documents) Regulations 2023.

We will keep a searchable register for the following types of arrangements:

  • Co-decision-making agreements
  • Decision-making representation orders
  • Enduring powers of attorneys

If we approve your request to search the register, we will decide whether you can see some or all the of the details in the arrangement. We will also decide whether you can get a copy of the arrangement.

Approved professionals and organisations will be able to search the register to:

  • Confirm that an arrangement exists and is active
  • See the details of the arrangement (as applicable)
  • Get a copy of the arrangement

The contents of the register depend on the registration of arrangements therefore it will be a number of months before anything will be available to view on the register. The register will be accessible through the MyDSS portal in the coming months however if you need to access the register beforehand, please contact the registration team on 01 211 9750 or email registration@decisionsupportservice.ie

Yes. You and your decision supporter will need to set up an account with the Decision Support Service before you can register a decision-support arrangement. When signing up, we will need you to provide us with your MyGovID, some personal details and contact information. To set up an account go to MyDSS to log in and set up an account.

If you do not have a person, you know and trust who can be your decision supporter, at the upper tier of support only, the Decision Support Service may be able to nominate a decision-making representative from our panel. A decision-making representative can only be assigned to you by a court order. Learn more about the panels by clicking on the link panels

If you need someone to help you to access information and explain it to you, you may find it helpful to contact an advocacy organisation. You can find out more on our Useful Links page.

​​​​​​In 2022, the DSS conducted an extensive recruitment campaign for the decision-making representative, special visitor and general visitor panels. Recruitment for these panels is now closed, and we are not currently recruiting for panel members at this time.

Future recruitment campaigns will be advertised on the DSS website and social media. You can keep up to date with our job advertisements by clicking on the link Careers and find out further information by clicking on the link News and Events pages.

There will be fees to register a co-decision-making agreement and an enduring power of attorney. These fees have been set by regulation. You can view a full list of all our fees by clicking on the link fees in the resources section of our website.

Some people may not have to pay a fee. This will depend on your household income and any dependents you have. You can view information on the criteria for obtaining a fee waiver as well as the process for applying in our resources section by clicking on the link resources section of our website.

There are also costs related to making an application to court to make a decision-making representation order. Some people may be able to get legal aid to help with this, this could include legal representation. For more information on this, contact the legal aid board.

If you have already made an Enduring Power of Attorney (under the Powers of Attorney Act 1996) then you can keep that arrangement and it will continue to be valid. The only change is that the Decision Support Service will be able to investigate complaints about an attorney under the 1996 Act.

If you wish to make an enduring power of attorney under the 2015 Act, you can do so. You can find out more on our webpage Enduring Power of Attorney page.

Under the new law, people are no longer able to be made a Ward of Court. Any ward of court or someone on their behalf can apply to the wardship court to have their case reviewed.

All current Wards of Court will be reviewed by the wardship court and discharged from wardship within three years after 26 April 2023. The courts will decide whether or not a current Ward of Court needs formal support under the new Act. For more information click on the link Wards of Court page.

Adults with an intellectual disability are presumed to have the capacity to make decisions, like everybody else. This includes the decision to get married. This is already the law.

As in every case, the registrar must be satisfied that both adults have the capacity to marry. If necessary, a person with a genuine interest in the adult’s welfare will be able to make an application under Part 5 of the 2015 Act to ask the court to declare whether they have capacity to marry. The person who applies to the court could be the registrar.

A decision supporter will not have the authority to consent, or withhold consent, to marriage on a person’s behalf.

The 2015 Act also repeals a very old law which said that a person could not get married if they were a ward of court. This came into effect in February 2021. This means that a ward of court may now get married if they have capacity to do so.

You do not need a lawyer to make a decision support arrangement. Detailed information on how to make a decision support arrangement is available on the Decision Support Service website for you to follow. However, if you wish to make an Enduring Power of Attorney you will need a statement from a lawyer that you understand the arrangement.

It is the prerogative of any donor to instruct a solicitor in respect of the creation and registration of an enduring power of attorney (EPA) if the donor wishes to do so. In our guidance, we state that a donor should consider doing so particularly when complex matters are involved.

As part of the content of an instrument to create an EPA, section 60(1)(b) requires a statement from a legal practitioner. Legal practitioner is defined in section 2 of the 2015 Act to mean a practising barrister or practising solicitor.

The Decision Support Service (DSS) provides a statement unique to the donor during the EPA application process for this purpose.

A capacity assessment looks at a person’s ability to make a decision for themselves. The assessment used is called a ‘Functional Test’ for capacity. This means the assessment is about a specific decision that needs to be made at a specific time. You may not make a blanket assessment that a person has no capacity.

Applying the functional test, a person can be said to lack capacity to make a decision if they are unable to do one of the following:

  • Understand information relevant to the decision,
  • Retain that information long enough to make a voluntary choice,
  • Use or weigh up that information as part of the process of making the decision,
  • Communicate their decision in whatever way they communicate (not only verbally).

Under the new law, everyone is presumed to have capacity at all times. The first step is to support people to make their own decisions. In some circumstances there may be a reason to question a person’s capacity to make a certain decision. The person who requires the decision to be made will often be the best person to do the capacity assessment. This could be, for example, a lawyer, doctor, or a person providing financial services.

There are also limited circumstances where the capacity assessment has to be undertaken by healthcare professionals. This is during the process of registering a co-decision-making agreement or enduring power of attorney. Formal statements from healthcare professionals are required to register these arrangements

At present, there is no legal basis for a family member or ‘next-of-kin’ to take on an automatic decision-making role or to give or withhold consent on behalf of another adult. Every adult is presumed to have decision-making capacity and may choose whether or not a family member is involved when they are making decisions. They may also decide whether or not their information is shared with a family member.

A person who faces challenges when making decisions may give someone they know and trust, such as a family member or carer, the legal authority to act as their decision supporter.

The person’s need for a decision support arrangement will depend on their circumstances and the decisions that they need to make.

At the upper tier, where the court appoints a decision-making representative to a person, it will appoint someone known and trusted by them where possible. The court must consider the wishes of the person when appointing a decision-making representative.

For the following types of decision support arrangement, the person who may require support must choose whether or not to make an arrangement:

  • Decision-making assistance agreement
  • Co-decision-making agreement
  • Enduring power of attorney
  • Advance healthcare directive

They must also choose who they wish to appoint as their decision supporter. A family carer cannot make a decision support arrangement for the person or on their behalf. We will provide information for family members and carers who wish to help a person to make a decision support arrangement.

If you believe a person is unable to make certain decisions for themselves, you may ask the court to make a decision-making representation order. The court will decide whether to appoint a decision-making representative for the person and who will act in this role.

Part of our role is to promote public awareness of the 2015 Act and to provide information about our services. This includes providing information and guidance to people who may use our service and their families.

We engage on an ongoing basis with different groups of people who may come into contact with the Decision Support Service.

We will continue to update information about the Act and our services on our website. We will also provide a range of guidance and other online resources in accessible formats for service users, decision supporters and other people who may come into contact our service.

We have a dedicated information services team in the Decision Support Service to help with any queries and to provide relevant information. You can contact the team on 01 211 9750 or email queries@decisionsupportservice.ie.

We recommend that service providers consider what measures they have in place to support service users. This includes, for example, policies and processes around consent procedures, communication with supporters, and assessing capacity.

The Codes of Practice are published on our website and provide a number of resources to help organisations fulfil their legal and professional obligations under the 2015 Act.

If the Director receives a complaint that an organisation had failed/refused to recognise an appointed decision supporter, the Complaints Team will contact the organisation to discuss the matter and, if necessary, explain the provisions of the 2015 Act. Under the 2015 Act, the Director is required to provide information and guidance to organisations and bodies in the State in relation to their interaction with relevant persons and the various tiers of decision supporters. The Director may also identify and make recommendations for change of practices in organisations and bodies in which the practices may prevent a relevant person from exercising his or her capacity under the Act – section 95(i).

The DSS has authority to supervise and regulate the decision support arrangements. There are no sanction or penalties, however, that the Director can directly impose on any external organisation or professional person who fails to recognise a valid decision supporter. However, depending on the response of the organisation, it would be open to the DSS or the complainant to notify the appropriate regulatory body, as this may amount to a breach of the standards and codes that apply to the particular organisation. In the usual way, the regulatory body would be required to examine the complaint and take appropriate action. It is also worth noting the relevance of the DSS codes of practice in this context. As set out in section 103(14), where it appears to a court, tribunal or body conducting any proceedings that a DSS code/breach of a code is relevant, it shall take that into account in deciding the question before it”.

You can contact the team on 01 211 9750 or email queries@decisionsupportservice.ie.